Chief Justice Roberts wrote a compelling majority opinion. In it, he explains that birthright citizenship is based on the common law concept of jus soli, or right of the soil, meaning if you were born here, youare a citizen. This interpretation of birthright citizenship was the law in this country even before the Constitution existed. The Court’s opinion reminds us that the principle of a “natural-born subject” is rooted in English common law, where any child born on the king’s soil was automatically protected by and loyal to that king, without an exception for how briefly the parents lived under his control. The Trump administration tried to argue this centuries-old rule did not really mean what it had always meant, and its narrower interpretation was legally justified. The Court rightly rejected this view – accepting the lower court’s reasoning that preserved birthright citizenship as it had been applied for more than a century and a half.
Notably, the Barbara opinion points out that the last time someone tried to carve a right by blood or jus sanguinis into birthright citizenship by excluding descendants of African slaves, the result was the “odious” and wrongfully decided 1857 Supreme Court decision in Dred Scott. The U.S. spent the next decade turning back to the pre-Dred Scott common law through the Civil Rights Act of 1866 and ultimately the passage of the Fourteenth Amendment that reaffirmed that all persons born in the United States are U.S. citizens. The Barbara court now rightfully heeds the warning of Dred Scott and avoidsmaking the same mistake. Instead, it adheres to the Fourteenth Amendment and INA definitions of birthright citizenship.
The Court also leaned into the supporting precedential Supreme Court case from 1898, Wong Kim Ark, which settled this exact question over a century ago. The Wong Kim Ark Court established that a child born here to immigrant parents is a citizen, regardless of the parents’ immigration status. It rejected the invention of a new “domicile” requirement for Wong Kim Ark to have birthright citizenship. The supposed lack of Mr. Kim’s Chinese citizen parents’ domicile was being presented to the Court as justification to exclude Mr. Kim from the U.S. as if it had always been a requirement. The government soughtto constrain the bounds of the Fourteenth Amendment as it argued that only children of permanently settled immigrants qualified for citizenship. The justices found almost no historical evidence before the 1880s to support the theory, because it was only invented in the decades after the Fourteenth Amendment was passed. The Court rightly rejected this scheme and refused to override the Constitution when it ruled that Wong Ark Kim was a U.S. citizen by birth.
The Barbara case confirms that U.S. citizenship law rests on the solid footing of the Fourteenth Amendment. The Court once again settles the issue of birthright citizenship, which is afforded to anyone born in and “subject to the jurisdiction of” the United States. The law applies to everyone who is physically here, full stop, unless you’re a foreign diplomat with immunity. Tourists who are visiting, temporary workers who have permission to remain, and even undocumented immigrants must all follow U.S. law and, hence, are “subject to” it. The Trump Administration’s attempt to carve out that undocumented or temporary immigrants somehow are not under U.S. jurisdiction fails because that is fundamentally not how jurisdiction works. The Court’s analysis of the plain meaning of the Fourteenth Amendment led it to accurately agree with the lower court’s decision that President Trump’s Executive Order violated the Fourteenth Amendment and the INA, and blocked enforcement of it.
Although the Executive Branch has authority over immigration policy, it is not unlimited. Indeed, the President cannot rewrite the Constitution with a stroke of a pen, no matter how strongly the order is worded. The Barbara case is an excellent example of the Constitutional checks and balances that put limits on presidential power grabs like Executive Order 14160. At the end of the day, the Supreme Court has once again upheld its precedent that citizenship by birth, a bedrock American principle for over 150 years, is not up to the whim of any one political party.
The Fine Print | Real power and protection is always hidden in the fine print. MLFA brings the fine print to life with this series of articles, cutting through the noise to break down the rights, risks, and realities you need to know. No loopholes, no confusion, just clear, unapologetic insight into the laws that shape the lives of Muslims in America.